Discussion of the EUs international human rights obligations in the context of the 2015-2016 migration/refugee crisis.

By Khalida Azhigulova, PhD Candidate April 2016

Drawing from experience in human rights and refugee rights advocacy campaigns in Central Asia, I am concerned about the messages being sent out in the handling of the current migration/refugee crisis in Europe. What respect is being given to the EUs international human rights commitments and obligations? Will it seem that the EU is not living up to its image and reputation? If so, this could obstruct the work of local human rights NGOs funded by the EU, undermine the EUs human rights policy in third countries, and may even worsen the compliance of third states with their international refugee law commitments. In this short piece, I explore the relevance of the rationalist compliance theories to understanding the EUs approach to its international human rights obligations.

Crisis? What crisis?

In an attempt to handle the 2015-2016 migration/refugee crisis, the EU and its individual member-states have been adopting various measures to limit the migration influx. Some measures include: the seizure of personal assets of asylum-seekers in Denmark[1], the re-introduction of a physical border in the Schengen zone between Hungary and Croatia[2], and the most recent EU-Turkey refugee deal designating Turkey as a safe third country.[3] These measures are controversial and have sparked academic and policy debates on their legality in light of the EU's international human rights obligations.

The EU and its individual member-states are obliged to comply both with the special EU legislation on asylum and ratified international treaties including the 1951 Convention Relating to the Status of Refugees and other international human rights treaties that supplement the refugee protection.

Why do states comply with international law?

There are several international law and international relations theories that seek to explain states' compliance with their international commitments. They can be broadly classified into two groups: rationalist compliance theories and normative theories. My focus here is on the former in the context of the EU's practices in managing the current migration/refugee crisis.

According to the rationalist compliance theories (realism, instrumentalism, and liberalism), compliance with international human rights law occurs only if it furthers the self-interest of the parties. Such self-interests comprise improving or maintaining a reputation for compliance, enhancing geopolitical power, furthering ideological ends, avoiding conflict, or avoiding sanctions by a more powerful state.[4] It follows that powerful and less powerful states have different attitudes towards compliance with human rights treaties. A powerful state may have less incentive to comply with its human rights obligations if it results in more costs than tangible benefits. Therefore, any compliance may be accidental. Yet some neo-realist scholars, such as Kenneth Waltz, contend that there might be powerful liberal democracies genuinely committed to human rights and through their own compliance they seek to impose their commitment to human rights on other nations.[5] In light of this neo-realist approach, it can be further argued that a liberal democracy complies with human rights treaties to maintain its image and reputation as a human rights abiding country. This positive image, in turn, empowers a liberal democracy to set an example of best practices in human rights treatment and promote these practices in other countries. This neo-realist theory may further explain the EUs noteworthy involvement in promoting human rights globally.

EU's involvement with human rights globally

In the last two decades, the European-based international organisations (e.g. the Organisation for Security and Cooperation in Europe) and the EU have been actively promoting human rights, democracy and the rule of law in non-EU countries. They were denouncing grave violations of human rights, promoting ratification and implementation of universal human rights treaties by new states, and supporting local human rights NGOs to raise local human rights standards to the international level. While the EUs policy was mainly targeting the high-level decision-makers, it was also sending a message to a wider population that the human rights standards in their countries and regions are below the international and European standards. Thus, the EU has been representing itself, purposefully or not, as a ‘role model' in human rights standard-setting. And eventually, the EU succeeded in developing its image as purporting to be a union of states with the best available human rights practices in the world.

In this context, perhaps it is no surprise that so many refugees arrive in Europe from countries with the poorest human rights records and where human rights and the rule of law cannot be objectively ensured due to ongoing internal conflicts. It is possible that these oppressed people arrive in Europe in search of human dignity, equality, the rule of law and respect for human rights, i.e. the values embedded in the EU treaties. Therefore, it can be implied that these people are arriving in Europe not only because of its more economically developed position, but because of its purported better standards of human rights treatment.

Possible repercussions of the EUs handling of the migration crisis

In its Second Action Plan on Human Rights and Democracy for 2015-2019, the EU reaffirms its commitment to ‘continue to throw its full weight behind advocates of liberty, democracy and human rights throughout the world'.[6] The current refugee crisis is turbulent: testing the integrity of the EUs human rights policy. The pressing need to resolve the migration crisis in the EU is well understood. Yet the EU politicians and decision-makers need to be conscious of the outside impact of their treatment and protection of refugees. All these measures - good and bad – are ready to be followed by many other countries.